Case Number(s): 09-O-11014; 09-O-15336; 10-O-06431(Inv.); 10-O-00352 (Inv.);
In the Matter of: STEVEN H. HERTZ , Bar # 153971 , A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Michael J. Glass, Deputy Trial Counsel, 1149 S. Hill Street, Los Angeles, CA 90015, (213) 765-1254, Bar # 102700
Counsel for Respondent: In Pro Per Respondent, Steven H. Hertz, P.O. Box 4755, Mission Viejo, CA 92690, (949) 340-6494, Ba,# 153971
Submitted to: Settlement Judge – State Bar Court Clerk’s Office Los Angeles.
<<not>> checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted August 18,1991.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 12 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
<<not>> checked. Until costs are paid in full, Respondent will remain actually suspended from the practice of law unless relief is obtained per rule 5.130, Rules of Procedure.
checked. Costs are to be paid in equal amounts prior to February 1 for the following membership years: prior to February 1 in three billing cycles following the effective date of discipline. (Hardship, special circumstances or other good cause per rule 5.132, Rules of Procedure.) If Respondent fails to pay any installment as described above, or as may be modified by the State Bar Court, the remaining balance is due and payable immediately.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
IN THE MATTER OF: STEVEN HOWARD HERTZ, State Bar No. 153971
STATE BAR COURT CASE NUMBER: 09-O-11014; 09-O-15336; 10-O-06431 (Inv.); 10-O-00352 (Inv.)
FACTS AND CONCLUSIONS OF LAW.
Respondent Steven H. Hertz ("Respondent") admits that the following facts are true and that he is culpable of violation of the specified statutes and/or Rules of Professional Conduct.
Case No. 09-O-11014
1. In June 2008, Kathy Dutton ("Dutton") and Ronald Grossman ("Grossman") employed Respondent to represent them in their claims for conversion and misappropriation of funds against Diane Schaaf ("Schaaf") and Wescom Credit Union ("Wescom"). Dutton and Grossman advanced $5,000 to Respondent as attorneys fees.
2. In or about October 2008, Respondent settled Dutton’s claims with Schaaf and Wescom. At the time of the settlement, Respondent and Dutton had a dispute over whether Respondent was entitled to an additional fee.
3. On October 23, 2008, Respondent deposited a $1,100 settlement check from Wescom into his client trust account at JP Morgan Chase Bank, account number xxxxxx7613 ("the cta") [ Footnote.: The full account number is omitted for privacy purposes.] On October 29, 2008,
4. On October 29, 2008, Respondent deposited a $7,500 settlement check from Schaaf into
the cta.
5. In or about December 2008, Respondent issued check number 1159 from his general account to Dutton, as payment of her portion of the settlement. Dutton did not receive the payment from Respondent.
6. On January 6, 8, and 14, 2009, Dutton demanded a replacement check from Respondent. By January 28, 2009, Dutton had not received the cashier’s check from Respondent. On January 28, 2009, Dutton again demanded that Respondent forward a check to Dutton.
7. In or about March 2009, Dutton received a replacement check from Respondent in the amount of $2,762.62 as her portion of the settlement.
Conclusions of Law
8. By not paying Dutton $2,762.62 until March 2009, Respondent wilfully failed to pay promptly, as requested by a client, funds in Respondent’s possession which the client was entitled to receive in violation of rule 4-100(B)(4) of the Rules of Professional Conduct.
Case No. 09-O-15366
1. In October 2008, Louis DeWitt ("DeWitt") employed Respondent to represent him and his wife in a claim for fraud against Banc of America Investment Services ("BOA"). On or about October 5, 2008, DeWitt paid Respondent $5,000 as attorneys fees.
2. Respondent filed a lawsuit on behalf of DeWitt and his wife in the Orange County Superior Court, Case No. 30-2008-00115700, on December 5, 2008.
3. In December 2008, DeWitt terminated Respondent’s employment, and employed attorney Stanley Moerbeek ("Moerbeek") as his new attorney. On or about December 23, 2008, Moerbeek sent a letter to Respondent requesting release of DeWitt’s file, a refund of the unearned portion of the $13,000 fee advanced by DeWitt, and the return of an executed Substitution of Attorney form provided by Moerbeek.
4. Respondent provided DeWitt with a partial accounting in the amount of $11,073.30, with regard to the fees paid by DeWitt. Further, Respondent did not refund the $1,926.70 which Respondent alleged that DeWitt owed Respondent.
5. Respondent did provide DeWitt’s file and the executed Substitution of Attorney form to Moerbeek.
Conclusions of Law
6. By not providing a complete accounting of the $13,000 fee advanced by DeWitt, Respondent wilfully failed to render appropriate accounts to a client regarding funds coming into Respondent’s possession in violation of rule 4-100(B)(3) of the Rules of Professional Conduct.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was January 18, 2011.
DISMISSALS.
The parties respectfully request that the Court dismiss the following alleged violations in the interest of justice:
Case No. 09-O-11014; Count: One; Alleged Violation: rule 4-100(A)(2);
Case No. 09-O-15366; Count: Four; Alleged Violation: rule 3-700(D)(2);
Case No. 09-O-15366; Count: Five ; Alleged Violation: rule 3-700(D)(1);
Case No. 09-O-15366; Count: Six ; Alleged Violation: Business and Professions Code section 6068(i)
The parties also respectfully request that the Court dismiss the following matters in the interest of justice:
Case Nos.
10-O-06431 (Inv.)
10-O-00352 (Inv.)
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of January 18, 2011, the prosecution costs in this matter are $4,273.00. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
AUTHORITIES SUPPORTING DISCIPLINE.
Under standard 1.7(a), "If a member is found culpable of professional misconduct in any proceeding in which discipline may be imposed and the member has a record of one prior imposition of discipline as defined by standard 1.2(f), the degree of discipline in the current proceeding shall be greater than that imposed in the prior proceeding unless prior discipline imposed was so remote in time to the current proceeding and the offense for which it was imposed was so minimal in severity that imposing greater discipline would be manifestly unjust."
Under Standard 2.2(b), "Culpability of a member of commingling of entrusted funds or property with personal property or the commission of another violation of rule 4-100, Rules of Professional Conduct, none of which offenses result in the wilful misappropriation of entrusted funds or property shall result in at least a three month actual suspension from the practice of law, irrespective of mitigating circumstances."
Under standard 2.10, "Culpability of a member of a violation of any provision of the Business and Professions Code not specified in these standards or a wilful violation of any Rule of Professional Conduct not specified in these standards shall result in reproval or suspension according to the gravity of the offense or harm, if any, to the victim, with due regard to the purposes of imposing discipline set forth in standard 1.3.
The Supreme Court gives the standards "great weight" and will reject a recommendation consistent the standards only where the court entertains "grave doubts" as to its propriety. In re Silverton 2005) 36 Cal. 4th 81, 91-92. Although the standards are not mandatory, they may be deviated from when there is a compelling, well defined reason to do so. Aronin v. State Bar (1990) 52 Cal. 3d 276,291.
In Sternlieb v. State Bar (1990) 52 Cal. 3d 317, Respondent was found culpable of violating rules 4-100(A), 4-100(B)(3), and 4-100(B)(4) in a single client matter. Respondent represented the wife in a marital dissolution. Rent proceeds related to the dissolution were deposited into Respondent’s trust account pursuant to an interim agreement for the joint benefit of her client and her client’s estranged husband, pending a final property settlement. Respondent began making withdrawals from these entrusted funds to pay her own fees at time when she could not reasonably have believed that she had authority to do so. Respondent justified her actions on the ground that the husband owed her client more in support arrearages and other debts than the amount of money that was being held in trust. The Court concluded that while Respondent was culpable of misappropriation of $4,066, and of violating the rules governing the handling of client trust funds, the evidence did not support the finding that she acted dishonestly in violation of Business and Professions Code section 6106. Respondent had no prior record of discipline, had an excellent reputation as an attorney, and the hearing referee found that the misconduct was not likely to recur. The Court imposed discipline consisting of one year probation with a thirty day actual suspension.
AGGRAVATING CIRCUMSTANCES.
PRIOR DISCIPLINE.
Under standard 1.2(b)(i), Respondent has a prior record of discipline. In this regard, on April 20, 2001, in Case Nos. 96-O-06077, et al. (S094425), Respondent received discipline consisting of a one year stayed suspension, three years probation with conditions, including restitution.
FACTS SUPPORTING AGGRAVATING CIRCUMSTANCES.
Under standard 1.2(b)(ii), Respondent’s current misconduct evidences multiple acts of wrongdoing as indicated above in Case Nos. 09-O-11014 and 09-O-15336.
ADDITIONAL MITIGATING CIRCUMSTANCES.
During the period of time for the alleged facts Steven Hertz provided pro bono assistance to the charitable organizations as follows:
NAME OF ORGANIZATION:
1. A Child at A Time, Inc. - An organization that raises money to fund the purchase of school books and uniforms for African children who are orphans.
2. Gramps for God; - An organization of retired men who promote and engage in mission work in Kenya.
3. The O’brien Foundation, - Mission organization founded to provide funding for necessities of war torn and famine areas of Africa.
4. Centro Familiar Christiano Missionaro,- Mission to Hispanic Americans in Buena Park California providing necessities for families and homeless persons.
OTHER CONDITIONS
FEE ARBITRATION CONDITION
Within thirty (30) days of the effective date of discipline herein, Respondent will provide the Office of Probation with sufficient proof that Respondent has initiated and paid for Binding Fee Arbitration, with the Orange County Bar Association, with respect to former client Louis DeWitt ("DeWitt") regarding Case No. 09-O-15366. The purpose of the Binding Fee Arbitration will be to determine whether Respondent owes DeWitt a refund of additional attorney’s fees. In any award rendered by the Arbitrator, DeWitt will not be obligated to pay Respondent any additional fees.
Case Number(s): 09-O-11014; 09-O-15336; 10-O-06431 (Inv.); 10-O-00352 (Inv.)
In the Matter of: STEVEN HOWARD HERTZ, State Bar No. 153971
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Steven H. Hertz
Date: January 26, 2011
Respondent’s Counsel:
Date:
Deputy Trial Counsel: Michael J. Glass
Date: January 26, 2011
Case Number(s): 09-O-11014; 09-O-15336; 10-O-06431 (Inv.); 10-O-00352 (Inv.)
In the Matter of: STEVEN HOWARD HERTZ, State Bar No. 153971
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
<<not>> checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
checked. All Hearing dates are vacated.
1. The case number referred to in the caption as “09-O-15336” is incorrect. It is ordered changed to “09-O-15366.”
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Signed by:
Judge of the State Bar Court: RICHARD A. HONN
Date: February 11, 2011
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and
County of Los Angeles, on February 14, 2011, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
STEVEN H HERTZ
P.O. BOX 4755
MISSION VIEJO CA 92690
<<not>> checked. by certified mail, No. , with return receipt requested, through the United States Postal Service at , California, addressed as follows:
<<not>> checked. by overnight mail at, California, addressed as follows:
<<not>> checked. by fax transmission, at fax number . No error was reported by the fax machine that I used.
<<not>> checked. By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge of the attorney’s office, addressed as follows:
checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
MICHAEL GLASS, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 14, 2011.
Signed by:
Angela Carpenter
Case Administrator
State Bar Court